S.A. Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 50953(U)(App. Term 1st Dept. 2015)
It is one of the perks of maintaining this monster. I chose the cases that land on here, although I allow almost all comments on here, even if directed towards me.
“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiffs’ assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance, including the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U] [App Term, 1st Dept 2015]).”
The no-show affidavits did not specifically states that the healthcare professional (“hcp”) was present on the date of the examination. It relayed the fact that the on day x, the healthcare professional was supposed to conduct the IME and assignor failed to appear. It set forth the practice and procedure for recording no-shows and letting the vendor know. This has been sufficient for years; however, in light of Alrof/Safeco mania, all of us have made sure the hcp states “I was present on the date and time and Assignor failed to attend”. Civil Court denied the motion based upon Alfro/Safeco.
As we all know by now, Alrof and Bright Supply were problematic because counsel for the insurance carrier used indefinite prepositions in discussing the no-show, i.e., if the examinations went forward, I would have been there. I hope that counsel has changed their no-show affirmations.
